Moore, Michael S., Harvard Journal of Law & Public Policy
More than two centuries after our Revolution, we Americans are still arguing over the nature, and even the coherence, of three of the natural rights in whose name the Revolution was fought. We contest (because it is also truly contestable in serious ethical discussions) whether the rights to equality (1) and to property (2) are either conceptually coherent or normatively desirable. The same conceptual and ethical queries exist for liberty, conceived of either as a right or as a value: Some contest its conceptual coherence, others pooh-pooh its plausibility as a basic value or as a general right. (3) Such skepticisms about liberty raise several large questions: What is liberty? Why is it valuable? Can there be a general right to liberty?
This short Article can hardly do justice to these three large questions. Nonetheless, in short compass I intend to sketch an answer to each of them.
II. WHAT IS LIBERTY?
"What is ... ?" questions are notoriously fuzzy in what they really seek. When attempting to answer such questions, it is wise for one first to discover what it is that is actually puzzling one. (4) With liberty, our puzzlement is largely normative: What could plausibly be of value and also plausibly be referred to as "liberty" or "freedom"? This suggests that the conceptual question--what do we mean by "liberty"--and the normative question--why is liberty valuable--are like a pair of trousers: Just as we can suspend temporarily putting one leg in while inserting the other, so can we suspend temporarily asking one question while we ask the other. Ultimately we must have one answer that simultaneously satisfies both. What we seek, in other words, is not some concept of liberty that is simply extracted from linguistic or other social practice. Rather, we seek a concept of liberty that at least plausibly names something of interest to us in ethics, something of value such as a good or a right. When we are asking "What is liberty?" we are thus not engaged in conceptual analyses of the old Oxford ordinary language style. We are engaged in a simultaneously normative and descriptive task. (5)
Still, as with trousers, it helps to proceed one leg at a time. What roughly are people typically picking out when they refer to liberty? We have many uses of the word that could serve as our exemplars. Our current President, for example has, in his second term, given numerous "freedom" speeches. Yet such political rhetoric is too overblown for my purposes. Consider a much more mundane example reported recently by the Wall Street Journal. (6) In an article entitled "Risky Riders: Touting Freedom, Bikers Take Aim at Helmet Laws," we hear that ABATE (A Brotherhood Against Totalitarian Enactments) and other motorcyclist lobbyist groups have successfully lobbied twenty-nine states to repeal or modify their helmet requirements for adult motorcycle riders. These groups call their program "five steps to freedom"; they call states where helmets are not required the "free states"; their most successful (and perhaps colorful) lobbyist, Sputnik (his legal name), has the word "FREE" tattooed across his forehead.
It is pretty plain what these motorcyclists intend to refer to by "free" and "freedom": it is the absence of criminal laws requiring them to wear motorcycle helmets. This is the kind of usage of these words that should attract our normative interest. Notice that implicit in this usage are three restrictions: First, that the interest is in negative liberty as absence of constraint; the interest is not immediately, at least, in positive liberty, which is the ability to achieve or obtain something. (7) Second, that the interest is in political liberty, so that the restraint, the absence of which is wanted, is legal coercion. Third, that the specific form of legal coercion to be avoided is criminal sanctions; the liberty desired is part of the principled limits of the criminal law, leaving aside whether other forms of legal coercion or inducements might be acceptable. …